From a Speech Given at the Seventh Annual St. Thomas More Society Prayer Breakfast, Annual Meeting of the Arkansas Bar Association – June 14, 2019
My name is Kevin Keech. I am mostly a commercial bankruptcy lawyer. I am also a searcher.
I believe in learning new things about people, cultures, and customs different from my own. I believe in outcasts and eccentrics. I believe in truth and logic. I believe in rambling conversations that jump from one topic to the next and identify connections and patterns within the strands. I believe in catharsis and good writing. I believe The Wire and Homicide: Life on the Streets are the best television shows ever written and produced. I believe that Townes Van Zandt, Warren Zevon, Fyodor Dostoyevsky, and William Faulkner tapped into the existential angst of good people filled with pain. I believe the American justice system is imperfect but seeks to do justice fairly and equitably with due process. I believe in civility, creativity, and perseverance. I believe human beings find happiness in pursuing causes greater than themselves. I believe a life without faith is a life without hope.
I was born in Shreveport, Louisiana to a single mother who was deeply religious. I never met my father. We moved to Hope, Arkansas in 1975 where she took a job at her brother’s carpet mill. The mill went bankrupt in 1982, but we stayed in Hope. I graduated from Hope High School in 1989 (Go Bobcats)-the product of a good civil public education system, a small community, and a small church organization that encouraged my interest in religious questions and public speaking. I graduated Harding University in 1993 with a bachelor’s degree in business administration and even did some preaching in and after college. After a year attempting my mother’s brothers’ profession in sales, I quit and went to seminary for a year and relished the time soaking in Christian history, philosophy, and sacred texts in Hellenistic koine Greek.
I became a lawyer, in part, because, from my Scots-Irish working-class roots, I needed to get a “real job” and was not sure I could make a living in academia without independent wealth. I graduated from UALR School of Law in 1998 and worked for Rose Law Firm in Little Rock for five years, working under some great mentors. I started my own shop in 2004. There were kind lawyers who referred me cases and I transitioned slowly to my current practice area. Bankruptcy likely fits my demeanor because of my background and early experiences more than an inherent and overwhelming passion and quest for knowledge of the bankruptcy code, state property, law, and the Uniform Commercial Code.
This morning, I would like to tell you a little about the Importance of Faith (or loss of faith) on the practice of law and a re-evaluation of that concept in my practice. I will do so with an evaluation of myth, discussion of a “formula,” a brief definition of the term “faith,” and close with a challenge.
I’ve never met a great litigator who didn’t tell good stories. Human beings are hard-wired for narrative. Stories are how we make sense of the world, complex ideas, relationships, emotions, and ethics. Most societies’ values and beliefs are framed within mythical narrative. By myth, I mean, “traditional stories concerning the history of a people or explaining some natural or social phenomenon, and often involving supernatural beings or events.”
Myth often precedes, but always informs the law. The Greeks had The Odyssey, the Iliad, and tales of Olympian gods. Roman citizens knew of Romulus and Remus. The Chinese, Confucian and Buddhist sayings and ritual. In India, great Hindu stores of deterministic quests and failures. Jewish tradition looks to Torah and the Prophets, to covenantal righteousness obtained by fidelity to the revelations of Yahweh. Christians point to the life and teachings of an apocalyptic preacher who foretold of a coming kingdom of divine rule and reconciliation through self-sacrificing love. Islam involves the story of Mohammed’s conversion and doctrinal adherence to submission, the elimination of individual price, and the power of dutiful ritual and prayer. Myth gives purpose to action and forms belief. It addresses the why. But why is why an important question for lawyers?
In a 2010 Ted Talk, Simon Sinek spoke for 15 minutes on a concept he called the “Golden Circle,” which I understood him to state:
Great communication begins with vision. It begins with why, moves to how, and finishes with what. Traditional communication begins with facts. It begins with what, moves to how, and may get to why. Traditional communication is clear, adequate, and efficient, but uninspiring.
Sinek uses a typical computer sales pitch as an example. “We make great computers. They are beautifully designed, simple to use, and user friendly. Want to buy one?”
A great computer sales pitch comes from Apple. “We believe in challenging the status quo in everything we do. We believe in thinking differently. We do so by making our products beautifully designed, simple to use, and user friendly. We happen to make great computers. Want to buy one?”
Bryan Garner repeats Sinek’s formula in “The Winning Brief.” Begin with a deep issue of less than 75 words in the form of a syllogism. Major Premise: The Law (Why). Minor Premise: A Fact (How). Conclusion: A Question (What).
Here’s one of Garner’s examples:
“The Voting Rights Act requires Texas cities conducting elections to publish all election-related information in both English and Spanish. Although the city of Irving publishes official election-related materials in both English and Spanish, it also publishes a newsletter that often contains election-related information in English only. In so doing, has the city violated the Voting Rights Act?”
Why, How, What. These formulas are not unique or new. But we will come back to that. Before I go further, however, I’d like to tell you what I mean by “faith.” For that, indulge me to define terms.
For most of us, faith is a personal belief system and worldview. The English word faith, however, is broader and comes from the Latin fides, a concept rooted in the ideas of honesty, duty, and loyalty, which are woven into the fabric of American law.
The Uniform Commercial Code defines “good faith” as “honesty in fact in the conduct or transaction concerned.” UCC 1-201 and in the case of a merchant dealing in goods, adds “the observance of reasonable commercial standards of fair dealing in the trade.” UCC 2-103.
Truth-telling, both in life and in court is not important simply because it is the law, but because it is fundamental to justice.
Corporate law imputes fiduciary duties on its governing boards and executives in its obligations towards its investors. Trust law is all about fiduciary duty.
Lawyers owe fiduciary duties to their clients, which requires honesty, loyalty, diligence, and, at times, subordinating your personal interests to those of your client.
The Romans borrowed heavily from the Greeks. The Greek word for faith is pistis, which, at least for Aristotle in his Rhetoric, meant proof. For Aristotle, pistis proof did not mean an irrefutable fact. Pistis engaged the mind, the will, the emotions of an audience to persuade them that something was right, moral, or good policy. For Aristotle, faith meant good and respectful dialogue and sound reasoning. In other words, Aristotle knew the formula – why, how, what – and that formula was part of his very understanding of pistis or faith.
Jewish and Christian traditions have a history of imagining into existence a higher standard of justice against prevailing societal injustice. As a result, from these traditions, faith is constructively creative. The narratives from these traditions are of the disenfranchised, the impoverished, the outsider, who seek positive change through protest against prevailing culture.
In “The Prophetic Imagination”, Walter Bruggeman describes how Jewish prophets stood in the rubble of broken and inequitable societies, cast a vision of what could be, and created reform in the very act of protest and imagination.
Hope is also prevalent in the Christian concept of faith where its scriptures redefines pistis as “the substance of things hoped for and the evidence of things not seen.”
The law is not static. The law is not always moral, just, or right. From this tradition, American law affords a litigant and counsel to argue for a good faith extension of the law. It is why Frank Capra has Jefferson Smith tell Senator Paine at the end of “Mr. Smith Goes to Washington that “lost causes are the only causes worth fighting for.”
The concept of faith, likewise, is an ever-evolving concept. Judeo-Christian ethics and Western philosophical traditions are only two of many voices in a competition of ideas, philosophies, and political thought. We live in a quickly changing world, where even Jefferson’s so-called “self-evident truths” are up for debate and the concepts of equality under the law and due process are not always a given.
Faith is important to all human beings and to all lawyers, regardless of whether or not one professes adherence to a faith community or doctrine because it provides a foundation for courage, openness, vulnerability, and truth. It is particularly important in a profession filled with risk, loss, pain, uncertainty, and exactitude.
Faith communities can solidify this need by reminding one to a higher calling, and offer centering through tradition, ritual and spiritual renewal. Faith communities and religious affiliation are not the same as faith, as I have tried to define it. Faith is broader and encompasses those skeptical or even hostile to religious affiliation, the agnostic, and the atheist. The faith of which I speak is the very substance of being human. It is about belief in hope, in future, and in gratitude.
I will confess I have lost faith at several points in my life and in my career. I have allowed fear, anger, and cynicism to give way. I have been uncivil, angry with opposing counsel, clients, and judges. At times I have been lazy and abandoned hope in the system. I would say that my faith is more akin to Augustine’s concept of “faith seeking understanding” than fait accompli. In fact, in my 40s, I abandoned my childhood and early adulthood Christian religious traditions and identify more with agnostics than a “believer.” This doesn’t mean I have discarded faith, only that I have re-imagined it.
To summarize, faith is about trust and reason, about putting the needs of others ahead of your own, about creativity, vulnerability, bravery, and, most of all, hope – hope for a better understanding, hope for liberty, independence, and inclusion and acceptance of many faith traditions, while honoring our own traditions .
So what is the narrative I’d like to tell myself when all seems lost? Listen to good stories, write good stories, tell good stories. Think great things, be honest, listen actively to others. Develop a mission, be trustworthy, be brave, be vulnerable, be willing to lose, find hope, dare greatly, be grateful.
To close, I quote from my own Christian tradition: “Whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable, if anything is excellent or praiseworthy, think about such things.” Philippians 4:8.